Halton Standard Condominium Corporation No. 597 v. Tarion Warranty Corporation, 2016 CanLII 102498

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-12-14

FILE:

10066/ONHWPA

CASE NAME:

10066 v. Tarion Warranty Corporation

Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 to Disallow a Claim

Halton Standard Condominium Corporation No. 597

Appellant

• and -

Tarion Warranty Corporation

Respondent

• and -

Arcan Land Inc.

Added Party

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Appellant:

Patrick Greco, Counsel

For the Respondent:

Danielle Peck, Counsel

For the Added Party:

Kevin Scullion, Counsel

Heard in Toronto:

September 20, 21 and 27, 2016

DECISION AND ORDER

BACKGROUND

This hearing arises from an appeal by Halton Standard Condominium Corporation No. 597 (the “Appellant”) from a Decision Letter issued by Tarion Warranty Corporation (“Tarion”) on February 10, 2016. The condominium is described as a live-work townhome complex, referred to as Thompson Square. There are 40 units, in four different “blocks”. The units have addresses on Derry Road and Thompson Road in Milton. Arcan Land Inc. (the “Builder”) is the vendor/builder of the condominium. The Appellant is claiming a breach of warranty in the construction of the condominium pursuant to section 14(3) of the Ontario New Home Warranty Plan Act, R.S.O. 1990, c. O.31 (“Act”) with respect to items listed on the Appellant’s First Year Performance Audit.

The items listed on the Decision Letter are as follows:

Item #5.1.1.1

No evidence of waterproofing on right side of foundation wall at south side of 9149 Derry Road.

This condition increases the potential for water leakage into the building.

This condition is typical throughout the development.

Item #5.1.1.9

Lack of foundation wall waterproofing at south wall of 9038 Derry Road.

This condition is a building code violation.

Item #5.1.1.12

Exposed foundation drainage layer adjacent window well at rear wall of 599 Derry Road

The relevant sections of the Act are as follows.

Warranties

13. (1) Every vendor of a home warrants to the owner,

(a) that the home,

(i) is constructed in a workmanlike manner and is free from defects in material,

(ii) is fit for habitation, and

(iii) is constructed in accordance with the Ontario Building Code;

(b) that the home is free of major structural defects as defined by the regulations; and

(c) such other warranties as are prescribed by the regulations.

Breach of Warranty:

14. (3) Subject to the regulations, an owner of a home is entitled to receive payment out of the guarantee fund for damages resulting from a breach of warranty if,

(b) the person has a cause of action against the vendor or the builder, as the case may be, for damages resulting from the breach of warranty. 1998, c. 19, s. 185 (1); 2000, c. 26, Sched. B, s. 15 (3, 4).

(4) Subject to the regulations, an owner who suffers damage because of a major structural defect mentioned in clause 13 (1) (b) is entitled to receive payment out of the guarantee fund for the cost of the remedial work required to correct the major structural defect if the owner makes a claim within four years after the warranty expires or such longer time under such conditions as are prescribed.

Notice of decision under s. 14:

16. (1) Where the Corporation makes a decision under section 14, it shall serve notice of the decision, together with written reasons therefor, on the person or owner affected.

Notice requiring hearing

(2) A notice under subsection (1) shall state that the person or owner served is entitled to a hearing by the Tribunal if the person or owner mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Corporation and the Tribunal.

Powers of Tribunal

(3) Where a person or owner gives notice in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and may by order direct the Corporation to take such action as the Tribunal considers the Corporation ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Corporation.

In its Decision Letter, Tarion stated that a waterproofing membrane was not specified for this construction, and that a dampproofing membrane and drainage layer was specified, and required by the Ontario Building Code (the “OBC”), and has been installed. Further, Tarion noted that there was no water leakage reported relating to this condition, hence no defect that amounted to a breach of warranty. Tarion also took the position at that time that the claim related to an area within a commercial element and was not covered under the Act. Tarion’s Counsel advised at the commencement of the hearing that this latter position was not being pursued by Tarion.

The parties agreed that the OBC does not require waterproofing, nor was it specified by the architect for this construction. A central issue in this hearing became whether, and if so, when, the Appellant’s claim changed from a lack of waterproofing to deficiencies with the dampproofing and drainage layer throughout the complex. The Appellant states that the leakage issues were identified in the Performance Audit (the “PA”), and that Tarion was made aware of the concerns about the drainage layer and dampproofing during the conciliation period. Tarion and the Added Party assert that the dampproofing and drainage layer issue first arose as an issue in August 2016 when the revised report from the Appellant’s expert, Edison Engineering Inc., was delivered, and therefore did not arise within the time frame for the first year claim.

FACTS

The Appellant retained Best Consultants, a professional consulting firm with architectural and engineering expertise, to do a PA for the condominium. The PA report must be delivered within a year after the condominium is first registered. The condominium corporation was registered on or about March 2012. The report was delivered in January 2013 in compliance with the specified timelines. The PA identified a long list of deficiencies of the common element components. A tracking summary of the deficiencies is generated and is updated every 90 days. This is the tool by which the condominium corporation, Tarion and the Builder track and report on the status of the various deficiencies. Tarion relies on this document when the parties enter the conciliation inspection phase.

The items listed in the Decision Letter were included in the PA. Items 5.1.1.1 and 5.1.1.12 were noted as “poor workmanship and/or material”. Item 5.1.1.9 was identified as a “Code violation.”

Laurie Jupp, the Appellant’s Property Manager, testified. She stated that shortly after she started her job with the Appellant, a conciliation inspection took place on September 15, 2015. This was an inspection of the first year claims submitted by the Appellant. Representatives of the Appellant’s Board of Directors, Best Consultants, Tarion and the Builder were all in attendance. Ms Jupp stated that Mr. Neff, one of the Appellant’s Board members who was present at the inspection, wanted to present a list of issues to the Tarion representative at the inspection, but was not permitted to do so. Instead, the Tarion representative stated he would only consider those items listed on the PA. There were no active leaks at the time of the conciliation inspection.

Ms Jupp described some of the water penetration issues that have occurred since the conciliation inspection in September 2015. One unit (#2) experienced a problem in October-November 2015, another (#23) in the spring of 2016 and another as recently as September 2016. Repairs have been done by one of the Appellant’s contractors in at least two of the units at minimal expense. She did acknowledge that the leaks in Units 2 and 23 were not identified in the PA and further, that claims arising out of the PA are the only warranty claims that have been made to Tarion to date.

Todd Neff testified. He is a co-owner of Unit 28 which is an end unit in one of the blocks. He has lived there since the winter of 2012 and as a result has observed many of the repairs undertaken by the Added Party at Thompson Square. Mr. Neff is an engineer though he is not currently practising as such. He is a member of the Appellant’s Construction Committee. Mr. Neff is aware of leaks at eight of the units and experienced several leaks in his own unit.

The initial repair at his unit consisted of the installation of a drainage layer on his end wall. When the leaks continued, excavation at the driveway revealed that the drainage layer had not been installed to ground level. It stopped one to two feet below the floor of the garage. The “fix” was to bring the drainage layer to the ground level. They have not had any leaks since.

In his evidence, Mr. Neff enumerated other units where a drainage layer was installed by the Builder. As a member of the Construction Committee, Mr. Neff performed an inspection of the dampproofing and drainage layers at various units throughout the complex in April 2015. They dug eight test holes. At each location they did find the dampproofing membrane and drainage layer; however, the upper limit of each ranged from one to two feet below ground level. They also observed that where repairs had been done, the dampproofing and drainage layer had been extended to ground level, though in some of these locations, the membrane and drainage layer only extended along a portion of the unit rather than the entire length. The purpose of their inspection was to demonstrate that the installation of the dampproofing and drainage layer was a problem throughout the complex.

Mr. Neff stated that he tried to bring this issue to the attention of the Tarion representative (Mr. Murad) at the conciliation inspection in September 2015, but was rebuffed; Tarion refused to consider the Committee’s findings because they had not been submitted with the PA. Best Consultants was made aware of the Committee’s findings at this time.

Joe Fiore is a project administrator and controller at Arcan Land Inc. and had responsibility for the Thompson Square project. He acknowledged that there were water leaks and repairs done at Mr. Neff’s unit and seven other units. Water was leaking in at the top of the foundation walls. The repair consisted of raising the dampproofing and the drainage layer to grade level or above, particularly at end walls of the units at the end of the various blocks. In addition, as part of the repair, the Builder re-directed water from the downspouts and in some places lowered the grade where it was too high. The repairs, in his view, seemed to be successful.

The Expert Evidence

Each of the parties retained engineers to deliver reports and give evidence. Each was qualified as an expert for the purposes of this hearing.

As noted above, each of the experts agreed that waterproofing was not required for this project. Waterproofing can be generally described as a thick membrane applied to a foundation wall. It prevents water penetration through the wall. Dampproofing is similar in that it is brush or spray applied to a foundation wall; it may look like a thick black paint and may be asphalt based. Dampproofing controls moisture from migrating into the concrete foundation wall. It is designed to retard moisture and works with a drainage layer which keeps water away from the wall. The drainage layer facilitates the drainage of water away from the wall to the footings.

The design drawings stipulated that “Terradrain 600 or equal to grade level (OBC 9.14.2.1(2)(3)(4)” was required, as well as “bituminous dampproofing (OBC 9.13.2)”. Terradrain is a type of drainage layer. The experts agreed that a drainage layer was only required where there is a finished wall, and not, for example, in the cold storage areas of the units.

The relevant sections of the OBC referenced are as follows.

9.13.2.1 Dampproofing

(1) Except as provided in article 9.13.3.1, where the exterior finished ground level is at a higher elevation than the ground level inside the foundation wall, exterior surfaces of foundation walls below ground level shall be dampproofed.

9.13.2.5. Application of Dampproofing Material

(1) Dampproofing material shall be applied over the parging or concrete below ground level.

9.14.2.1. Foundation Wall Drainage

(1) Unless it can be shown to be unnecessary, drainage shall be provided at the bottom of every foundation wall that contains the building interior.

(2) Except as provided in Sentences (4) and (5), where the insulation on a foundation wall extends to more than 900 mm below the adjacent exterior ground level,

(a) a drainage layer shall be installed adjacent to the exterior surface of a foundation wall consisting of,

(i) not less than 19 mm mineral fibre insulation with a density of not less than 57 kg/m³, or

(ii) not less than 100 mm of free draining granular material, or

(b) a system shall be installed that can be shown to provide equivalent performance to that provided by the materials described in Clause (a).

The design drawings referred to the drainage layer being to “grade level”. Grade is defined in the OBC as “the average level of proposed or finished ground adjoining a building wall at all exterior walls.”

The Appellant’s expert, Edison Engineering (“Edison”), delivered two reports. The first, in May 2016, is the leak test report. Matt Charbonneau testified about the methodology and results of the leak testing at three locations: 525 Thompson Road, 9071 Derry Road and 9149 Derry Road. The evidence is that these three locations were not reported on the PA as having leaks. He explained that the purpose of the testing was to identify the areas where leaks had been reported, and through leak testing, to replicate the leaks; their purpose was not to create new ones.

The Tribunal heard a great deal of evidence from all three experts both explaining and challenging the leak testing procedure. The Added Party expert suggested, for example, that Edison in its testing forced high pressure water into weep holes at the base of a masonry wall which would then result in water leakage. After hearing all of the evidence, the Tribunal concludes that the methodology of the testing was very much a secondary issue to the matters to be determined at this hearing. The Tribunal does not rely on the water testing evidence in deciding the issues on this appeal.

Edison did identify in their report that the dampproofing and drainage board did not extend to grade. Edison also identified poorly sealed conduits as points of water penetration. Seals of cold joints had not been identified as an issue on the PA. This is problematic from Tarion’s perspective. Furthermore, in this report, Edison recommended that “the builder waterproof foundation walls to grade” as required by the OBC.

Edison then prepared a revised report, dated August 21, 2016. In this report, there is no reference to “waterproofing”, but it reiterates that the drainage layer and dampproofing did not extend to ground level at the test locations, and at ten random foundation wall excavation reviews throughout the complex, contrary to the drawings and the applicable OBC provisions. Jason Truman, who co-authored the Edison report, testified that he strongly believes that this condition is consistent throughout the complex. The report went on to state that as a result of the deficiencies, leaks occurred at the three units tested and furthermore, likely occurred at other units, and the risk of continued and further leaks will remain until the dampproofing and drainage board are installed in accordance with the OBC and design. It was their professional recommendation that this repair needs to be effected everywhere.

Tarion’s expert, Nick Tassone from Building Sciences Inc., and the Added Party’s expert, WSP Canada Inc. (Paul Kurina and Jay Leedale), challenged the leak testing methodology. But they did not dispute that the dampproofing and drainage layer at some test sites was not extended to ground level. Mr. Tassone suggests that the drainage layer should be terminated below grade level since most drainage boards are not UV resistant, and to avoid it being damaged in landscaped beds. He did note the absence of a drainage layer in one test pit that he examined, which he stated was an OBC violation. But, in his opinion, there was no material damage because the dampproofing was intact and effective at that location.

Regarding the issue of the termination of the drainage layer below ground level, Mr Tassone noted that the design requirement for the Terradrain drainage states that it is to be to “grade level”. Grade is defined in the OBC as “the average level of proposed or finished ground adjoining a building wall at all exterior walls.” This is, he stated, a mathematical calculation which he suggests would result in a level approximately one foot below the ground floor level.

On this point, WSP, in their report, states that the OBC does indicate that “foundation elements below ground level need to be dampproofed” but they go on to state that “regular construction tolerances make it virtually impossible to achieve perfection in the alignment of these materials with the final ground level. The standard practice for installation is to hide the material slightly below grade to minimize the cosmetic impact and prevent deterioration from solar radiation.” In evidence, Mr. Kurina stated that he would consider two feet to be “marginally” below grade.

From the evidence, it became clear that each of the experts at times used the words “ground level” and “grade level” interchangeably. The Tribunal notes that the particular OBC provisions do not use the term “grade”. That word appears in the specification for the drainage layer only. That specification also refers to the OBC, and it is the OBC that prevails. The Tribunal does not accept that the ground level, as used in the relevant OBC provisions means anything under than the general understanding of ground level –being at ground, and not one to two feet below ground level.

ANALYSIS

After reviewing the evidence and the submissions of Counsel, the Tribunal has identified three issues central to the appeal which are addressed, in turn, below.

1. Does the fact that the Appellant characterized the claim as a lack of “waterproofing” effectively negate the claim for warranty coverage? And, related to this, does the fact that there were no “active” leaks at the time of the conciliation inspection in September 2015 preclude the claim?

To both questions, Tarion submits that it does. Ms Peck submits that the PA was prepared by Best Consultants who, as professionals in the field, would have been aware of the difference between waterproofing and dampproofing. Yet they did not note any issue with the dampproofing, and while presumably they were aware through their inspections that the drainage layer was not installed to grade, they did not raise the issue in the PA. Even Edison used the term “waterproofing” in their May 2016 report.

Counsel for the Added Party, Mr. Scullion, submits that the Appellant as a condominium corporation has a higher level of sophistication than an individual homeowner, suggesting that the distinction between waterproofing and dampproofing, for example, should not have been lost on them. The Tribunal agrees that the Appellant, with its own construction committee, is not an unsophisticated first home buyer, but the Act is, first and foremost, consumer protection legislation, and the level of sophistication of the claimant does not diminish that intent.

While one may question why Edison used the term “waterproofing” when all parties seemed to know that waterproofing was not an OBC requirement, it is also somewhat disingenuous for Tarion to suggest that the issues around the dampproofing and drainage layer came as a surprise. Mr. Neff and Ms Jupp both testified that they wanted to raise the problem at the September 2015 conciliation inspection, but Mr. Murad, who did not testify, would not discuss it. Tarion has disclosed a letter dated December 18, 2015 from Ms Jupp to Mr. Murad that refers to the specification for Terradrain to grade level and the OBC provision. In that letter, Ms Jupp wrote, referencing the Warranty Assessment Report:

It was observed and mentioned throughout the report that in several locations drainage board was visible through the window wells. During these observations, it was pointed out that the drainage board viewed was not installed to grade level. Nor was the installation of the drainage board done correctly. A document was presented during our review to show that this was the case in multiple locations throughout the Corporation’s property, however was disregarded.

The Added Party was also well aware of the issue within the warranty period. Mr. Fiore testified that they had completed the very repair of bringing the drainage layer to ground level, in eight locations, due to reported water leakage. Mr. Tassone opined in his report that the issue was not identified within the statutory warranty coverage period.

Tarion submits that the claims put forward now are new and very different claims that were not in the PA, and not reported within the warranty period. Each and every location at which the drainage layer was not installed to grade was not identified. However, the Tribunal, in 7395 v. Tarion Warranty Corporation, 2013 CanLII 11905, responded to the submission from Tarion that the claim should be denied because there was no evidence proving that there was a failure of each and every window being claimed, stating as follows.

The uncontradicted evidence from the Applicant is that all parties were aware and were kept aware of the defect from the time it first arose in the first year of occupation. The Respondent and the Added Party were not caught by surprise by the report of the defect in the second-year form. The defect had already raised its ugly head in the house in the first year, it was properly reported in the year-end claim form and the defect continued until the hearing of this matter. The Added Party took steps to replace the windows, thereby recognizing that the defect was legitimate.

And further:

To deny the Applicants their remedy in this case because they lacked the prophetic insight as to when a particular window might succumb to the defect that arose in the first year and remained thereafter is, in the circumstances of this case, unreasonable and antithetical to the consumer protection nature and character of the legislation

Given the evidence of the knowledge and awareness of the parties of the issues for which the claim is made, the Tribunal finds that it would be unreasonable to conclude that the Appellant must now wait for a leak to occur to have the dampproofing rectified in the same manner as has been done in other units previously, only to be met then with a response from Tarion that the deadline has passed for a water penetration (two-year) claim.

Mr Tassone’s report asserts that the occurrences of water penetration “are generally related to sealing and treatment of those components which normally degrade or deteriorate over time depending on the quality of the original installation … Furthermore, we believe that the above noted issues are maintenance related and they were not identified within the statutory warranty coverage period.” Yet, this is only a five-year-old building. One might question whether it is reasonable to expect, with a quality original installation, that there would be a deterioration or degradation of the foundation system over such a short period of time. A line item in the Appellant’s reserve fund for foundation repairs may be the norm as Mr. Tassone suggested, as might, for example, be roof repairs. A current maintenance issue is speculative at best; nor was there any suggestion as to what that maintenance ought to have been.

The Tribunal notes too, that Mr. Tassone, whose scope of work did not appear to include a determination of whether the claims may or may not have been made within the statutory warranty period, again took it upon himself, on Tarion’s behalf, to come to a conclusion on that issue of the timeliness of the claim.

The Tribunal finds that the issue of the defect in the dampproofing and drainage board systems was raised within the first-year warranty period. Although the word “waterproofing” was used on the First Year Performance Audit, rather than “dampproofing”, the Tribunal finds that the issue was sufficiently identified and described on that form. Although leaks at other units subsequently occurred that were not listed on the Performance Audit, the Appellant should not be expected to predict the location of all leaks that might occur as a result of the defect.

The evidence does not, however, support a finding that the lack of a proper seal at various cold joints and the resulting water penetration at those joints, as referred to in the Edison report, was identified and reported to Tarion within the one year period as a claim under s. 13 of the Act.

2. Is the installation of the dampproofing and drainage board compliant with the OBC?

All parties agree that the dampproofing and drainage board are required by the OBC for these buildings. Tarion and the Builder submit that OBC compliance must be assessed in a functional manner; that is, is the dampproofing and drainage board performing as intended? Tarion submits that there may be a breach of the OBC, but the installation may be functioning correctly, and therefore there is no breach of the warranty – the OBC is not prescriptive. The WSP report suggests that “the required materials are installed and comply with objectives and functional statements of the OBC”. It goes on to state that “the application of the dampproofing relates to general resistance of precipitation and moisture from the exterior and below grade as well as indoor quality and health effects from exposure to moisture on the interior” (emphasis added).

It is true that there is no suggestion that the fact that the drainage board and dampproofing was not installed to ground level has resulted in a health or safety concern. To that extent, the broader intent of the OBC is met. However, the evidence was that the purpose of the dampproofing and drainage board is to prevent water from migrating through the foundation wall. The two work together to achieve that. The evidence was that there have been leaks, at Mr. Neff’s home and others. Repairs were undertaken and those repairs involved taking the two components to ground level. The evidence also shows that those repairs were effective. Leaks stopped. Therefore, it is reasonable to conclude that the function of the dampproofing and drainage layer was not satisfied until the repair that was done.

It was acknowledged by the Respondent and Added Party experts that the dampproofing and/or drainage board at the site was terminated “slightly” below grade (WSP report). Mr. Tassone did state that where noted by them, “the lack of a drainage board is a violation of the Ontario Building Code…”

Both WSP and Mr. Tassone went to great lengths in their evidence to explain why “to grade” did not mean “to ground level,” or that “to ground” might mean something less – one to two feet below ground. The Tribunal is not persuaded. Rather, the explanation that tolerances are permissible (tolerances of one to two feet in this instance), seemed to be an attempt to minimize the import of the OBC and the fact that the dampproofing and drainage layer was not compliant with the OBC in this situation.

As noted with approval by the Divisional Court in Cecilio v. Tarion Warranty Corp., [2007] O.J. No.1692, at paragraph 48 of its decision:

The Tribunal continued its analysis by observing that the Act is “public protection legislation” to be given “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”. It then concluded that the true intent was to protect members of the public who are new home buyers in Ontario and give them assurance in part that the houses they are buying comply with the OBC. It should not, said the Tribunal, be a defence for a builder that a house not built to Code did not deteriorate in one year. “A house is either built in conformity with the OBC or it is not. If it is not, there is a breach of warranty which entitles it to a remedy.”

The Tribunal therefore finds, based on the evidence that the installation of the dampproofing and drainage board was not compliant with the OBC, which amounts to a breach of warranty.

3. Given the breach of warranty, what is the remedy?

It is well settled through the jurisprudence that the Tribunal has the ability to consider the evidence before it and to make its own determination as to what an appropriate order is under the statutory regime. In addition to proving that the items for which the claim is made are defects, the Appellant must prove damages.

The Tribunal is satisfied that the non-compliance with the OBC with respect to drainage board and dampproofing has resulted in leaks and will likely continue to result in leaks in the future. The Tribunal bases this finding on evidence of the existing installation of dampproofing and drainage board, the occurrence of various leaks, and the effectiveness of bringing the dampproofing and drainage board to ground level at remedying the leaks in specific locations. The appropriate remedy under the Act is rectification of the defective work or compensation for the cost of rectification.

Mr. Truman testified about the bidding process Edison oversaw for the recommended repairs. The bid request was broad in scope. The total budget (based on the lowest bid) was $291,512, including HST. It included, among other things, installation of the dampproofing and drainage board from 600 mm (about two feet) below grade to grade level in accordance with specifications, and the sealing of all conduit penetrations including natural gas lines. It was anticipated that the work would take up to 20 weeks. It also included a $20,000 engineering fee (to Edison). It did not exclude those units for which the dampproofing and drainage layer had already been corrected by the Builder (approximately eight); nor did it exclude the cold storage areas where the OBC does not require the dampproofing and drainage layer. The Appellant has not provided any calculation of what amount should be deducted from the budget estimate for these exclusions.

Mr. Tassone, in his report, stated that “if a drainage layer is to be installed for compliance to the Ontario Building Code then the scope of work to install a drainage layer would involve localized excavation and reinstatement of overburden material …at a cost estimate of $36,000 plus taxes” (emphasis added). Mr. Fiore stated in his evidence that the Builder could undertake to have a contractor do the repair similar to the work that has been done already at the various units in the complex.

To this, Mr. Greco submitted that the Appellant should not be required to go back to the Builder who has challenged the need for this repair work. There is indeed precedent for an order for a monetary payment. He cited the Tribunal’s decision in 8549 v. Tarion Warranty Corporation, 2015 CanLII 59625, where an award of approximately $3,500 was made. This was clearly a cash settlement on a very different scale, but perhaps more importantly, the Tribunal noted in that decision that the parties in that appeal were very acrimonious.

While this was an appeal in which the parties each vigorously asserted their respective positions, the Tribunal would in no way characterize it as acrimonious. The Builder remains willing and able to do the work, and the Appellant, through its witnesses, and in particular, Mr. Neff, has confirmed that where the required repair was undertaken, it has been effective.

The Tribunal conducting the hearing is authorized by section 16 of the Act to direct Tarion to take such action as the Tribunal considers Tarion ought to take in accordance with the Act. “Such action” includes a payment out of the guarantee fund provided by the Act or the undertaking of necessary repairs. The Tribunal agrees with Mr. Scullion’s submission that the Builder is well positioned to know where repairs have been done already and the extent of the site conditions that may impact the repair through its familiarity with the project.

ORDER

Therefore, for the reasons stated above, and pursuant to the authority vested in it by section 16(3) of the Ontario New Home Warranties Plan Act, the Tribunal allows the appeal of the Appellant as it relates to the installation of dampproofing and drainage layer to ground level throughout the complex where not currently completed, and holds that this item is a warranted item and directs Tarion Warranty Corporation to ensure that the necessary repairs are completed in compliance with the OBC.

LICENCE APPEAL TRIBUNAL

Patricia McQuaid, Vice-Chair

Released: December 14, 2016